UNPUBLISHED In re EBERHARDT/WELCH, Minors. May 15, 2018

Transcription

1 S T A T E O F M I C H I G A N C O U R T O F A P P E A L S UNPUBLISHED In re EBERHARDT/WELCH, Minors. May 15, 2018 No Macomb Circuit Court Family Division LC Nos NA NA NA Before: CAMERON, P.J., and FORT HOOD and GLEICHER, JJ. PER CURIAM. In this child protective proceeding, petitioner, the Department of Health and Human Services (DHHS), appeals as of right the trial court s order dismissing its petition, which requested that the court assume jurisdiction over the minor children, HE, DE, and BW, and terminate respondents parental rights at the initial dispositional hearing. We vacate the trial court s dismissal order and remand for further proceedings. I. BACKGROUND In April 2015, respondent-mother and respondent-father lived together with their son, BW, and respondent-mother s two daughters, HE and DE. On April 29, 2015, Children s Protective Services (CPS) received a complaint that respondent-father had inappropriately touched then 13-year-old HE. During a Care House forensic interview in May 2015, HE disclosed that respondent-father had inappropriately touched her chest and private area through her clothes. HE further reported that this alleged touching had been going on for a couple of days. After further investigation by CPS and the Roseville police, CPS was not able to substantiate the allegations of sexual abuse. Consequently, the case was closed. Despite CPS s decision to close the investigation, the caseworker explained to respondent-mother that she had a duty to protect her children. The worker also spoke with respondent-mother about monitoring more closely the interactions between respondent-father and HE. Approximately a year later, in April 2016, a neighbor called the police out of concern for HE s safety. During a welfare check, a police officer questioned HE about any inappropriate contact with respondent-father. HE denied that anything was going on in the house. When the -1-

2 officer specifically asked HE about the 2015 complaint, HE stated that there was nothing like that going on and that was all in the past. In July 2016, the Roseville police received another report of alleged sexual abuse by respondent-father. On August 18, 2016, HE participated in her second forensic interview at Care House. During that interview, HE disclosed that respondent-father would touch her back and try to unhook her bra. He would also pet her shoulders, head, back, and vagina. In addition, HE disclosed that he would wake her up during the night, bring her into the bathroom, take off her clothes, and then make her perform oral sex. HE stated that this alleged abuse began when she was seven or eight years old. HE also reported during the Care House interview that she had attempted to tell her mother approximately a year earlier, but she did not believe the accusations. On August 23, 2016, DHHS filed a petition requesting that the court take jurisdiction of the children and terminate respondents parental rights at the initial dispositional hearing. The petition alleged, among other things, that respondent-father had sexually abused HE and that respondent-mother failed to protect her daughter from the abuse. At an adjudication bench trial, respondents moved for summary judgment at the close of petitioner s proofs. The trial court indicated that because it was a bench trial, the matter was more accurately characterized as a motion to dismiss pursuant to MCR 2.504(B)(2). The trial court considered respondents motion under that court rule, found that petitioner had failed to demonstrate that the children came within the court s jurisdiction, and dismissed the petition. Thereafter, this appeal ensued. II. INVOLUNTARY DISMISSAL For its first issue, petitioner asserts that the trial court erred when it applied the court rule governing involuntary dismissal, MCR 2.504(B)(2), to this child protective proceeding. We agree. Resolution of this issue requires us to consider the interplay between the general court rules applicable to civil matters and the more specific court rules governing child protective proceedings. This Court interprets court rules by employing the same principles that govern the interpretation of statutes. In re McCarrick/Lamoreaux, 307 Mich App 436, 446; 861 NW2d 303 (2014) (quotation marks and citation omitted). Consequently, this Court s purpose when interpreting court rules is to give effect to the intent of the Michigan Supreme Court. Id. To this end, the language of the court rule itself is the best indicator of intent. Id. As with statutory construction, [i]f the plain and ordinary meaning of a court rule's language is clear, judicial construction is not necessary. Id. Further, [w]hen interpreting a court rule, we must read the rule s provisions reasonably and in context. We should not read court rules in isolation. Generally, this Court affords every word and phrase in a court rule its plain and ordinary meaning. But when the Michigan Supreme Court chooses a word that has acquired a peculiar and appropriate meaning in the law, we must construe that term according to its legal meaning. We construe identical language in various provisions of the same rule identically. And we read different rules that share the same subject or share a common purpose together as one law. -2-

3 When interpreting a court rule, we must presume that every word has some meaning. Therefore, we must avoid any interpretation that renders any part of the court rule surplusage or nugatory. This Court must give effect to every sentence, phrase, clause, and word in a court rule. If at all possible, this Court should interpret a court rule to avoid inconsistencies. [Id. at (footnotes omitted).] Applying the foregoing principles, we conclude that the trial court erred when it applied the involuntary dismissal provisions of MCR to this child protective proceeding. MCR 2.504(B)(2) provides: In an action, claim, or hearing tried without a jury, after the presentation of the plaintiff s evidence, the court, on its own initiative, may dismiss, or the defendant, without waiving the defendant s right to offer evidence if the motion is not granted, may move for dismissal on the ground that, on the facts and the law, the plaintiff has no right to relief. The court may then determine the facts and render judgment against the plaintiff, or may decline to render judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in MCR [MCR 2.504(B)(2) (emphasis added).] Under MCR 2.504(B)(2), involuntary dismissal of a hearing tried without a jury is appropriate when, after the presentation of the plaintiff s evidence, the court determines, based on the facts and the law, that the plaintiff has no right to relief. In re ASF, 311 Mich App 420, 427; 876 NW2d 253 (2015). Despite the trial court s invocation of MCR 2.504(B)(2), there is no authority for the proposition that this court rule can be applied in child protective proceedings. Chapter 3 of the Michigan Court Rules addresses special proceedings and actions. More specifically, Subchapter concerns special proceedings involving juveniles. 1 MCR governs the applicability of other Michigan court rules to proceedings involving juveniles; it provides, in pertinent part: (A) Scope. (1) The rules in this subchapter, in subchapter 1.100, in MCR 5.113, and in subchapter govern practice and procedure in the family division of the circuit court in all cases filed under the Juvenile Code. 1 These special proceedings include: child protective proceedings, juvenile waiver proceedings and other designated proceedings in which a juvenile is tried as an adult for a crime, juvenile delinquency proceedings, juvenile guardianships, and personal protection orders against minors. See MCR 3.931, MCR 3.950, MCR 3.951, MCR 3.979, and MCR

4 (2) Other Michigan Court Rules apply to juvenile cases in the family division of the circuit court only when this subchapter specifically provides. (3) The Michigan Rules of Evidence, except with regard to privileges, do not apply to proceedings under this subchapter, except where a rule in this subchapter specifically so provides. MCL governs privileges in child protective proceedings. [MCR 3.901(A)(1), (2), and (3) (emphasis added).] Accordingly, only the court rules in MCR et seq. or those explicitly incorporated by subchapter apply in juvenile proceedings. The rule governing involuntary dismissal, MCR 2.504, is not among the rules specifically incorporated into juvenile or child protective proceedings. This Court has held that it is improper to apply a general civil court rule to child protective proceedings if that court rule has not specifically been incorporated by MCR et seq. For example, in In re Collier, 314 Mich App 558, 569; 887 NW2d 431 (2016), this Court held that the trial court erred when it defaulted a respondent for failing to appear at the adjudicative trial, explaining: The hearing referee who conducted the adjudication hearing stated that a default would be entered against respondent because he failed to appear for the hearing. We are aware of no authority for the proposition that a respondent in a child protective proceeding can be defaulted. In fact, the court rules are clear that a default cannot be entered in child protective proceedings. MCR 3.901(A)(1) sets forth the court rules that are applicable to child protective proceedings; the rule pertaining to defaults, MCR 2.603, is not among the rules specifically incorporated into juvenile or child protective proceedings. Moreover, MCR 3.901(A)(2) declares that [o]ther Michigan Court Rules apply to juvenile cases in the family division of the circuit court only when this subchapter specifically provides. (Emphasis added.) Thus, respondent should not have been defaulted for failing to appear. Similarly, in In re PAP, 247 Mich App 148; 640 NW2d 880 (2001), this Court held that motions for summary disposition pursuant to MCR 2.116(C)(10) are not authorized in child protective proceedings. This Court stated: Moreover, the trial court erred in concluding that MCR 2.116(C)(10) applies to child protective proceedings. MCR 2.116(C)(10) allows a trial court to grant a motion for summary disposition where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. -4-

5 Clearly, MCR 2.116(C)(10) does not apply to child protective proceedings. MCR [2] provides in part: (A) The rules in this subchapter, in subchapter and in rule 5.113, govern practice and procedure in the family division of the circuit court in all cases filed under the Juvenile Code. Other Michigan Court Rules apply to such juvenile cases in the family division of the circuit court only when this subchapter specifically provides. (B) Unless the context otherwise indicates: (1) MCR , and apply to delinquency proceedings and child protective proceedings; * * * (4) MCR apply only to child protective proceedings.... At no place in subchapter is MCR applied to child protective proceedings. When interpreting court rules, we apply the same standards that govern statutory interpretation. Hopkins v Parole Bd, 237 Mich App 629, 640; 604 NW2d 686 (1999). Where the plain language of the rule is clear and unambiguous, courts must simply apply the clear meaning. Id.; Meyer Jewelry Co v Johnson, 229 Mich App. 177, 180; 581 NW2d 734 (1998). Here, applying the clear and plain meaning of the court rules, MCR does not apply to child protective proceedings. The trial court s conclusion that no reason exists not to allow a motion under MCR 2.116(C)(10) simply disregards the plain meaning of the court rules. [In re PAP, 247 Mich App at (some emphasis omitted).] Consequently, applying the plain language of the court rules and the rationale set forth in In re Collier and In re PAP, we hold that the trial court erred when it concluded that MCR applied to this child protective proceeding. Respondents argue that this Court s decisions in In re Collier and In re PAP are not dispositive because those cases were focused on protecting the respondents due process rights. However, as further discussed below, the trial court s application of MCR in this case violated the rights of the minor children. Therefore, contrary to respondents suggestion, the decisions in In re Collier and In re PAP are not inapposite. 2 The rules governing juvenile proceedings were amended and renumbered, effective May 1, MCR subchapter was moved to new MCR subchapter In re JK, 468 Mich 202, 209 n 17; 661 NW2d 216 (2003). -5-

6 The consequence of the trial court s sua sponte application of MCR was to divest the children of their right to participate in the proceeding. Child protective proceedings are unique matters. Respondents and petitioners are not the only parties to the proceeding. Indeed, parties in a child protective proceeding include not only petitioners and respondents, but also the minor children, parents, guardians, and legal custodians. MCR 3.903(A)(19). Acknowledging the child s role in the proceedings, the trial court must appoint a lawyer-guardian ad litem (LGAL) to represent the child at every hearing. MCR 3.915(B)(2)(a). Further, the LGAL s duty is to the child, not the court, and the LGAL, in pursuing a child s best interests, is entitled to full and active participation in all aspects of the litigation and access to all relevant information regarding the child. MCL 712A.17d(1)(b) (emphasis added). More specifically, during the adjudicative phase in child protective proceedings, the child plays a unique role. MCR 3.972(D) specifically provides that [a]t the conclusion of the proofs, the lawyer-guardian ad litem for the child may make a recommendation to the finder of fact regarding whether one or more of the statutory grounds alleged in the petition have been proven. In this case, when the trial court indicated at the close of petitioner s proofs that it was going to proceed under MCR 2.504, it precluded the children from presenting evidence and denied the LGAL an opportunity to make a recommendation to the finder of fact. The trial court s approach in this case did not safeguard the children s interests. This was a manifest violation of MCR which provides the court shall proceed in a manner that safeguards the rights and proper interests of the parties, and mandates that the court rules in juvenile proceedings are to be construed to secure fairness, flexibility, and simplicity. This Court s decision in In re ASF, an adoption matter, supports the proposition that the trial court erred in this case when it dismissed the petition before the LGAL had an opportunity to present evidence on behalf of the minor child. In that case, the petitioners, prospective adoptive parents, appealed after the superintendent of the Michigan Children s Institute (MCI) withheld consent to adopt. In re ASF, 311 Mich App at 422. During the lower court proceedings, the MCI moved for involuntary dismissal pursuant to MCR 2.504(B), and the circuit court granted the motion over the LGAL s objection. 3 Id. at 424. On appeal, the LGAL argued that the motion for involuntary dismissal was premature because she was not allowed to present her own case in its entirety before the trial court decided that the petitioners were not entitled to relief. Id. at This Court found no merit to the LGAL s argument because, in adoption matters, neither the child nor the LGAL is an interested party in the proceedings. Id. at 438. This Court specifically noted, Because the LGAL was not a petitioner or an interested party, the trial court could grant a motion for involuntary dismissal under MCR 2.504(B)(2), before the LGAL completed her presentation of evidence. [Id. at 438 n 5.] By implication, it would be improper to grant involuntary dismissal under MCR if an interested party has not been provided an opportunity to present evidence. The analysis in 3 In adoption matters, except as modified by MCR , adoption proceedings are governed by Michigan Court Rules. MCR 3.800(A). Consequently, application of MCR in adoption cases is authorized. -6-

7 In re ASF is instructive by analogy. Unlike in adoption matters, children in child protection proceedings are interested parties. Therefore, applying this Court s reasoning in In re ASF, it is improper for a trial court to dismiss a petition before the LGAL is permitted an opportunity to present proofs on behalf of the best interests of the minor children. Because MCR 2.504(B)(2) does not apply in child protective proceedings and the trial court s application of that court rule precluded the children from substantially participating in the proceedings, the trial court clearly erred when it relied on this court rule to dismiss the petition at the close of petitioner s proofs. On remand, the trial court shall permit the LGAL to present evidence and make arguments and recommendations on behalf of the children. The trial court shall then engage in an examination of the entire record and reconsider whether one or more of the statutory grounds for jurisdiction have been proven by a preponderance of the evidence, consistent with this opinion. 4 We vacate the trial court s order of dismissal and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. /s/ Thomas C. Cameron /s/ Karen M. Fort Hood /s/ Elizabeth L. Gleicher 4 Petitioner also argues on appeal that the trial court erred in finding that the evidence did not establish a statutory basis for jurisdiction. Because we are remanding this case for further proceedings, it would be premature for us to decide this issue at this juncture. -7-